Tag Archives | attachment of earnings order

My postbag continues to bulge with divorce enquiries focussing on child support issues and spousal maintenance. The conclusion of a divorce does not, of course, mean the end of disputes or problems over child maintenance or the intepretation of family law court orders. Here is my most recent query:

Following a very messy and financially costly divorce, a court order was made that included a RPI increase at the insistance of the petitioner. The only alternative I had was to go througth a full court procedure which could have significantly increased the fees that at that point were spiralling out of control. The date of this increase is in effect from 20012 (this is the actual date on the court paper). My ex wife has not ‘reminded’ me about this probably because she is still being persued by her solicitor for the oustanding fees that she ran up during the divorce-since the divorce she has instructed other solicitors in an attempt to entangle me in more nonsense which I refuse to engage in. I normally direct the new solicitor to the original one where the fees remain oustanding and this tends to silence the correspondence for a while until a new instruction is generated.

I have and will pay the monthly child maintenance fees until my child reaches the age of 18 or until she leaves full time education as stipulated in the court order. It was my ex-wifes solicitor who drew up the order and maintenance payments will cease approximately 2018 but as stated the increase id documented as 20012-what are my options?

To begin with, I’m not sure whether the order referred to above contained spousal maintenance and child support (maintenance) or just child maintenance and this attracts the RPI increase. But, no matter, since the principles remain the same for either order (with one exception I’ll return to below).

the order is made against the payor so it is enforceable in case of default. I consider that this includes any failure to comply with an RPI increase ordered by the court (even if it was by consent).

the purpose of the order is two fold – an automatic increase in the maintenance each year prevents it losing its true value over a period of years and it makes it unncecessary for the parties to have to apply back to the court for a variation (at significant legal cost) in the amount being paid.

Your options

Carry on as you are.

But you know the increase is due and the defecit will build up. You may (eventually) receive a solicitor’s letter asking for payment at the new level (and threatening enforcement). If you ignore it and an application for enforcement is made, be very careful as you could end up on the wrong side of a costs order. Especially if a judge decides it is not a case of ‘can’t pay’ but ‘won’t pay’.

The application back to court could be for a variation of the amount of maintenance as well as enforcement. Your ex may think you could afford to pay more and ask for the increased amount to be index linked as well. If this happened you are entitled to ask the court to decrease the amount and it will be a question of fact as to whether the judge thinks the original amount under the order should go up or down, or remain the same. It is possible for an attachment of earnings order to be made at the same time (if you are not self-employed) as a way of ensuring that the right amount is paid each month going forward.

If, by the time your ex made an application to the court to enforce or vary, your arrears were more than 12 months old, your ex would have to ask permission from the court to recover any arrears older than 12 months.

Apply back to court yourself

If you are struggling to pay the original amount you could apply back to the court yourself to vary the amount downwards and ask the court to ‘remit’ (waive) any arrears that may have built up.

I mentioned an exception above. This is where the order is for child support/ maintenance. This would only be in existence if you and your ex agreed to the order. In the absence of agreement, the family court has no jurisdiction in child maintenance issues (with some further exceptions, I won’t mention here!). In the absence of agreement, the CSA will deal. It is possible for either party to an agreed child maintenance order in the family court to wait, to all intents and purposes, a period of 15 months from the date of the original order and then ask the CSA to take over so the family court will no longer deal with the child maintenance element.

Maintenance payments can be enforced by an attachment of earnings order

It is all well and good to obtain an order for spousal or child maintenance but what can you do when the person ordered to pay it, won’t pay? I received the following enquiry:

Could you help me please find information to support an application to the court for an attachment of earnings order which I should like to apply for as my ex-husband does not comply with the RPI increases, and refuses to pay by standing order.

This cry for help is referring to the situation where the payer of maintenance (what lawyers call periodical payments) is paying the amount of maintenance originally ordered by the court but is not increasing the amount each year using an automatic upwards variation linked to the Retail Prices Index (RPI). If you’re not sure what I’m talking about but think it might apply to your situation then just click on the Category for “Spousal Maintenance” on the right hand side of this web page. This will bring up my previous posts on maintenance and I hope you can follow them without too much trouble.

In the present case, it is possible to make an application to the Court for an attachment of earnings order so that the employer is compelled to deduct the maintenance from the payer’s wages and send it directly to a specialist administrative unit at the court who will then pay it to the person with the benefit of the maintenance order. This procedure exists and is available to just about anyone who is owed money by another person.

The ex-husband’s refusal to apply a court ordered annual increase in line with the RPI will create arrears. Please note: if the arrears are more than 12 months old then it will be necessary to apply to the court for leave (permission) to enforce these older arrears.

The application will be made back to the county court which made the original order. The request for the order will be made on Form N337.

New procedure….

The Attachment of Earnings form N337 is not very well suited to dealing with arrears of maintenance. It needs to be amended accordingly. Also, strictly speaking the amount to be deducted in the attachment would be limited to the modest amount of increase attributable to the RPI uplift that the ex-husband is refusing to pay. But it would be better for the court to specify the new amount (the original amount plus the RPI uplift) to be attached. Unfortunately, Form N337 is not very flexible.

I am going to presume the application is to enforce the payment in a county court. The maintenance would be a ‘qualifying periodical payment order’ under the Maintenance Enforcement Act 1991 (‘MEA’). I mention this because I am not sure if the ex-husband in this case was originally ordered to pay the maintenance by standing order or if the order was silent and the ex-wife simply wishes that he would pay by standing order because his payments are erratic. The MEA is helpful because section 5 (a) allows the court to specify that the payer of maintenance must do so by standing order. The Application to enforce payment of maintenance can therefore contain a request that the payments are made by standing order.

The Family Proceedings Rules 2010 (FPR) normally require a person making an application to the court to have attended a mediation meeting first but it IS NOT required in the present case since it deals with enforcement. But I would recommend sending a recorded delivery letter to the ex-husband setting out his breach of the order and the amount required to put it right and asking for those arrears to be paid within 14 days. State that otherwise there will be an application to the court and a copy of the letter will be attached to the court application. Point out you will ask the court to make an order for costs in your favour.

The FPR have introduced new rules for the enforcement of existing orders including those for payment of money. This is dealt with under Part 33 of those rules. By all means, if you are fairly certain that an attachment of earnings is the right application then you can just complete Form N337 and send that off to the court.

But… if you are not entirely sure that an attachment of earnings is the right type of enforcement then your application to enforce the payment could be submitted on Form D50K to accompany Form N337. Form D50K is entitled: “Notice of Application for Enforcement by such method of enforcement as the court may consider appropriate”. The whole point of this form (and it is a welcome change to the court’s approach) is that it allows the court to consider the most appropriate method of enforcement. If it appears to the judge that another method is more appropriate then the payer of maintenance will be ordered to attend court so the relevant information can be gathered. So it is possible to pursue a different type of enforcement instead of having to submit a wholly new application.

You will need to pay a court fee but you may be able to get a fee reduction by completion of a EX160 fee remission form.

I will post a video flagging up the forms mentioned in this post here.